Before me for review is the Recommended Decision and Order (R.D.
andO.) of Administrative Law Judge (ALJ) Thomas M. Burke, issued on March 16, 1990, in the
above-captioned case, which arises under the employee protection provision of the Surface
Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. 2305 (1982).
Complainant, formerly employed as a truck driver for Respondent, a
commercial motor carrier, alleges that he was blacklisted by Respondent from finding
employment as a truck driver because he (Complainant) had filed a complaint against
Respondent with the United States Department of Transportation alleging that Respondent
violated Federal motor carrier regulations.
1The regulations applicable to STAA
cases, 29 C.F.R. Part 1978 (1989), provide that hearings shall be conducted pursuant to the rules
of practice and procedure for administrative hearings before ALJs in 29 C.F.R. Part 18. 29 C.F.R.
1978.306(a). Section 18.1(a) of 29 C.F.R. provides that the federal rules "shall be applied
in any situation not provided for or controlled by [the Part 18] rules, or by any statute, executive
order or regulation." Resort to the federal rules was properly invoked here.
2In his analysis of the facts, the
ALJ found that Complainant "has not produced any proof of a causal link between the
protected expression and the adverse employment action. Proof that Respondent
disseminated false information about Complainant's driving record is a necessary element of his
claim of retaliatory treatment under the Act. It cannot be inferred from his inability to find
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work." R.D. and O. at 8 (emphasis supplied.) This statement indicates that direct
evidence of a discriminatory motive is required for establishment of a primafacie case. Such direct evidence, however, is not required. Under the burdens of proof
applicable in STAA cases, Complainant need only provide evidence of circumstances which give
rise to an inference that the protected conduct was the likely motive for the adverse action.
McGavock v. Elbar, Inc., Case No. 86-STA-5, Sec. Final Decision and Order, July 9,
1986, slip op. at 10-11 quoting Dartey v. Zack Company, Case No. 80-ERA-2! Sec.
Dec. and Final Order, April 25, 1983. Such circumstances include actions which, if unexplained,
are more likely than not to have been based on a discriminatory motive. Furnco Construction
Corp. v. Waters, 438 U.S. 567, 576 (1978). Although the ALJ did not accurately articulate
Complainant's burden as to causal connection, he recognized that "[a]s to causation, proof must
be offered which raises the inference that participation in the protected activity was a substantial
motivating factor in the adverse employment decision." D. and O. at 6 (emphasis supplied.)